New Laws For Oregon Employers, 2016

Ban The Box

Effective January 1, 2016, you are not allowed to ask about criminal history on job applications. You may ask about criminal history at the initial interview or after a conditional offer for employment is made. Exemptions: Non-employee volunteers, Law enforcement/criminal justice employees, and if a federal, state, or local law provides requires the employer to ask about criminal history. Note: You may (and probably should) notify your job applicants that disclosure of criminal history will be required during the interview or as a condition of employment.

To Do:

(1) Delete the “box” or question on your job application forms that asks about criminal history.

Tip: If you do exclude potential employees based on criminal background and that exclusion is causing an unequal impact on minority groups, make certain that you have a realistic reason to exclude criminals from the job type.

UPDATE 11/27/2015: The City of Portland unanimously passed an enhanced “Ban the Box” City Ordinance, which requires non-exempt employers to delay inquiries about criminal history until the employer makes a conditional offer of employment.

Non-Compete Agreements

Effective January 1, 2016, noncompetition agreements must be limited to 18 months from the date of separation. Noncompetition agreements are disfavored in Oregon (and Washington) and unenforceable in California. Oregon already restricts the use of noncompetition agreements (see ORS 653.295). This law applies to agreements entered into on January 1, 2016 or after.

To Do:

(1) Review your employment agreement template and if there is a no-compete section, modify it to limit duration to 18 months from the time of separation.

(2) DO NOT modify existing noncompetition agreements. Modifications may only be made as part of a bona fide advancement of the employee.

Mandatory Sick Leave

Effective January 1, 2016, Oregon employers with 10 or more employees must implement a paid sick time policy. For employers within the City of Portland, the number is 6 or more employees. The policy requires that every employee accrue and be able to use 40 hours of paid sick leave every year. If you have fewer than 10 employees (5 or less in Portland) than you must provide unpaid sick time. The employee can use the leave for their own illness or to care for a family member, donate the accrued time, and for a host of other reason carved out in ORS 659A.272 and ORS 659A.159. Note: If you already have a paid time off (PTO) policy that complies with these requirements then you don’t need to change the terminology of your policy.

To Do:

(1) Review your sick time policy (or the lack of a policy), attendance policies, and any other policy regarding leave from work and rewrite them to comply with this law. For every 30 hours worked, the employee accrues 1 hour of leave (for 40 hours, 1.3 hours leave). Alternatively, you can give all your employees up to 40 hours of leave for the year on January 1st.

(2) Review payroll. The law requires a disclosure to the employee of the amount of leave accrued.

Wage Transparency

Effective January 1, 2016, it is unlawful for an employer to discharge, suspend, or discriminate against an employee who discloses their wage to co-workers, who asks about their wages or a fellow employee’s wages, or initiates some action based on the disclosure of wage information. Exceptions: The law doesn’t apply to an employee who has access to employee wage information as part of their job duties, like certain HR staff.

To Do:

(1) Educate your staff. The important point here is that with this new legislation, inquiries about wage amounts are protected from retaliation.

Marijuana

Measure 91 was enacted, making the use of recreational marijuana legal in Oregon. Under federal law, marijuana use and possession is still illegal. As an employer you can (continue to) prohibit recreational marijuana use on or off the job based on federal law. Previous case law in Oregon (Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus.) ruled that employers are not required to accommodate an employee’s use of medical marijuana.

To Do:

(1) Nothing. Your 2015 policies, assuming they are legal now, will be legal in 2016 and going forward until the federal or state law changes.

(2) Educate your employees.

(3) If you do want to change your business’s drug policy to allow for recreational and medical marijuana use, contact an attorney. There are several state and federal laws that overlap to inform how these policies should be written.

And stay tuned. The Department of Labor is proposing rule changes that effect employees classified as “exempt” from wage and hour laws under the Fair Labor Standards Act (think, overtime rules). Among the legal requirements for proper classification of an employee as exempt is a salary amount requirement. In order for the employee to be exempted from the overtime rules of the FLSA, the employee must earn a salary of $455/week. The proposed rule will increase that amount to $970/week.

These are just a few examples of how employment law is changing. It is a good idea to contact your lawyer around this time every year and ask them to review your file to see if any changes need to be made in how your business will operate in the coming year.